Fisheries and Aquaculture Department

Given the valuable resources and high levels of human activity that characterize coastal areas, there are inevitably competing and conflicting claims over the allocation and use of such resources. While the resolution of conflict is one of the central concerns of any legal system and courts may have an important part to play in resolving disputes in coastal areas. Traditional `top-down' legislative processes and litigation through the courts have often proved to be ineffective methods of regulating competing interests and addressing conflicts concerning natural resources and the environment.

Dissatisfaction with conventional litigation and rule-making processes has led to a growing trend in favor of alternative dispute resolution (ADR) techniques in the context of natural resource and environmental management. These techniques include arbitration, mediation and direct negotiation, and alternative means of regulating to avoid or manage conflict, such as negotiated rule-making. Since these techniques aim to engage the disputants actively in seeking a result acceptable to all the parties involved, they are likely to be more effective in the ICAM context.

Figure 1 Managing ConflictModified from Scialabba, N. (ed.) 1998

Conflict Resolution

Being social interactions, conflicts have many dimensions that should be properly understood before interventions are made. Often there will be more than one source of conflict. Correct identification of the nature of the source of the conflict requires getting past the symptoms until the root cause(s) are reached. Potential sources of conflict include:

• Relationships – values, beliefs, prejudices, past injustices, poor communication.

• Information – poor quality information, misinformation, differing interpretations.

• Interests – perceived or actual; substantive/physical or intangible/perceptual.

• Structures – institutions, authority, resource flows, time constraints, financing.

There are several stages in conflict management and negotiation. The following apply to most methods:

• Initiation – a stakeholder or outsider invites help to manage the conflict.

• Preparation – conflict analysis, information sharing, rules, participant selection.

• Negotiation – articulating interests and win-win options, packaging desired options.

• Agreement – concluding jointly on best option package, recording final decisions.

• Implementation – publicizing outcomes, signed agreement (optional).

Consensus Building

Consensus is a decision making process that works creatively to include all persons making the decision. It is the most powerful decision process as all members agree to the final decision as all participants have a direct voice and veto power. In short consensus takes into account and validates each participant and everyone gets the opportunity to voice their opinion, or block a proposal if they feel strongly enough about a decision.

A consensus means overwhelming agreement, which is not the same as unanimous. It is important that consensus be the product of a good-faith effort to meet the interests of all stakeholders. The key indicator of whether or not a consensus has been reached is that everyone agrees they can live with the final proposal. This therefore also differs from a majority rule outcome which rather than focusing on producing the best possible outcome for everyone, majority-rule decisions almost guarantee an unhappy minority and instability with the minority biding their time, awaiting an opportunity to sabotage the group's outcome.

Most dispute resolution professionals believe that groups or assemblies should seek unanimity, but settle for overwhelming agreement that goes as far as possible toward meeting the interests of all stakeholders. It is absolutely crucial that this definition of success be clear at the outset. Before the parties in a consensus building process come together, mediators (or facilitators) can play an important part in helping to identify the right participants, assist them in setting an agenda and clarifying the ground rules by which they will operate, and even in "selling" recalcitrant parties on the value to them of participating. Once the process has begun, mediators (facilitators) try to assist the parties in their efforts to generate a creative resolution of differences. During these discussions or negotiations, a mediator may accompany a representative back to a meeting with his or her constituents to explain what has been happening.

The mediator might serve as a spokesperson for the process if the media are following the story. A mediator might (with the parties' concurrence) push them to accept an accord (because they need someone to blame for forcing them to back-off the unreasonable demands they made at the outset).

Finally, the mediator may be called upon to monitor implementation of an agreement and re-assemble the parties to review progress or deal with perceived violations or a failure to live up to commitments.